Burrell v Todd [2012] QCATA 257

CITATION: Burrell v Todd [2012] QCATA 257 PARTIES: Martin Hamilton Burrell v Kathy Todd APPLICATION NUMBER: APL010-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Susan Gardiner, Member DELIVERED ON: 5 December 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor Civil Dispute – tenancy dispute – where notice of breach issued by tenant – where breach responsibility of landlord – where breach not remedied – whether procedural fairness – where order made to resolve dispute Queensland Civil and Administrative Tribunal Act 2009, ss 142(3), 146 Residential Tenancies and Rooming Accommodation Act 2008, s 429 Kevik Pty Ltd v Fielding and Whyte as Receivers and Managers of Arash Gol Mohammadi [2012] QCATA 215 referred APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION Senior Member Richard Oliver [1] I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes. Member Susan Gardiner [2] Kathy Todd was a tenant in a property owned by Martin Burrell under a fixed term tenancy from 13 August to 31 December 2011. On 17 October 2011, Ms Todd issued a notice to remedy breach under the Residential Tenancies and Rooming Accommodation Act 2008 addressed to Mr Burrell citing concerns about unsatisfactory state of the garden, problems with a television aerial and lack of quiet enjoyment by her of the premises. [3] There was no resolution under this breach notice and on 23 October 2011 Ms Todd issued a notice of intention to leave the premises on 11 November 2011. [4] Proceedings were commenced in QCAT by Ms Todd for a termination of the tenancy based on the breach notice issued by Ms Todd. [5] The matter was heard in QCAT on 19 December 2011 and the learned Member found that Mr Burrell had breached the lease by failing to perform gardening works. The lease between the parties was terminated from 11 November 2011 and Mr Burrell was ordered to pay Ms Todd the costs of filing the application set at $21.00. [6] Mr Burrell appeals this decision. [7] Under the QCAT Act, an appeal in the minor civil dispute jurisdiction can only be brought with the Tribunal‟s leave or permission.1 The question whether or not leave should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [8] Mr Burrell‟s leave to appeal application includes a number of allegations about Ms Todd‟s general demeanour and character. These matters are not relevant to a grant of leave to appeal. In summary Mr Burrell„s leave to appeal and submissions specify the following main grounds that are relevant to his application: 1 Section 142 Queensland Civil and Administrative Tribunal Act 2009. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd (supra). 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 2 of 4 -- 3 I. That procedural fairness was not accorded Mr Burrell at the hearing; II. That the claim should not have been allowed as there was insufficient evidence to support a breach of gardening responsibilities. Procedural Fairness [9] Mr Burrell submits that he had insufficient time to present his case and that the learned Member spent too much time listening to Ms Todd. [10] A reading of the transcript of this hearing which concluded after some 70 minutes simply does not support Mr Burrell‟s contention. As each issue was raised by either party, the learned Member gave both Mr Burrell and Ms Todd time to air their views, skilfully guiding them both to remain on point when their difficult relationship made each of them very antagonistic to anything said by the other party. [11] The learned Member did, in my view strike a very appropriate balance between allowing the parties to “vent” their frustrations with each other while guiding them both to the issues that were important to the particular notice of breach in question. Each party was given appropriate time to present their case about the alleged breaches in question by the landlord. [12] As I have commented in a previous appeal6, the minor civil jurisdiction within QCAT is an extremely busy jurisdiction. Decision makers must deal with the evidence presented by the parties fairly while still effectively using the hearing time available to each matter to reach a decision. This means dealing with evidence that is presented by parties on the day wherever possible. As long as adequate time is given to the parties to comment on the material or to ask questions that arise from it, the responsibilities of natural justice and procedural fairness are fulfilled in the hearing process. [13] The transcript show that in this matter these opportunities were afforded to Mr Burrell and his appeal on this ground must fail. Insufficient evidence to support a breach of gardening responsibilities [14] Mr Burrell‟s submissions in support of this ground seem to imply that the learned Member did not have sufficient evidence before him to conclude that Mr Burrell as landlord was in breach of his acknowledged responsibilities to maintain the garden7. [15] A reading of the transcript does not support this contention. The learned Member found that the notice of breach was sufficiently detailed for Mr Burrell to be able to understand Ms Todd‟s complaint. Further there had been at least one previous email from Ms Todd outlining her concerns that 6 See Kevik Pty Ltd v Fielding and Whyte as Receivers and Managers of Arash Gol Mohammadi [2012] QCATA 215. 7 See transcript page 12. -- 3 of 4 -- 4 had not been acted on by Mr Burrell. The learned Member found that the breach was not remedied within the time allowed by the notice and that Mr Burrell was or should have been aware of the gardening issues. [16] The reasons of the learned Member found that the difficulty in the matter was that there was no mutual agreement between the parties in relation to the performance of the gardening but that it was the obligation of the landlord to arrange such times and that therefore there had been a breach of the lease. [17] This was the only breach proven to the satisfaction of the learned Member. The learned Member acknowledged that usually this may not have founded a termination of the tenancy, but that in these circumstances where a notice of breach being issued by the tenant, where the landlord acknowledged that he had the responsibility and where no remedy of the breach was undertaken, the tenant was entitled at law to seek an early termination. Those orders were made. [18] Section 429 of the Residential Tenancies and Rooming Accommodation Act 2008 allows either a landlord or a tenant to apply for an order if there is a dispute about an agreement between them. The section says the Tribunal may make any order it considers appropriate to resolve the dispute. [19] It is clear from a reading of the transcript and the reasons that the only practical way to end to ongoing disputes between these parties was to terminate the tenancy – particularly as the tenant had shifted out, it was very close to the end of the fixed term in any event, the landlord was in breach under the notice and had not taken steps to remedy the breach. The result is also in keeping with the Tribunal‟s responsibilities under s 13(1) of the QCAT Act to make orders that are fair and equitable to the parties. [20] There is no demonstrated or discernable error in the learned Member‟s decision. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage. Leave to appeal should be refused. -- 4 of 4 --